RENDERED: JANUARY 5, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0345-MR

RUSSELL VANOVER, JR. APPELLANT 

v. 

APPEAL FROM LAUREL CIRCUIT COURT

HONORABLE GREGORY A. LAY, JUDGE

ACTION NO. 21-CI-00218

MARTHA BAKER, IN HER 

CAPACITY AS EXECUTRIX OF THE 

ESTATE OF JACK VANOVER, JR.; 

MARTHA C. BAKER; AND 

RANDALL VANOVER APPELLEES 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: ACREE, GOODWINE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: This appeal addresses the validity of a right of first refusal 

for a tract of real property contained in an Option Agreement and the application of 

Kentucky Revised Statutes (KRS) 381.225. The issue on appeal is whether the 

right of first refusal (the Refusal Option) constituted a restraint on alienation and, 

thus, was void. The Laurel Circuit Court granted summary judgment in favor of 
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the defendants, concluding that the 2016 option agreement was void ab initio, and 

denied the plaintiff’s motions to amend the complaint and to alter, amend, or 

vacate the judgment. We reverse and remand.

Jack Vanover Jr. (Jack) owned real estate in the Cold Hill Community 

of Laurel County, Kentucky, and on October 25, 2016, Jack’s nephew, Russell 

Vanover Jr. (Vanover), purchased property from Jack. At the closing, Jack and 

Vanover entered into a separate Option Agreement related to a bordering, 5.55-

acre tract of real property. The Option Agreement provided as follows:

OPTION AGREEMENT

THIS OPTION AGREEMENT, is made and

entered into effective as of October 25, 2016 (the 

“Agreement”), among Jack Vanover, Jr. of London, KY 

(“Seller”), and Russ Vanover (“Purchaser”).

WHEREAS Seller owns a certain parcel of real 

estate (“Property”) located in the Cold Hill community of 

Laurel County, Kentucky and more particularly described 

in Deed Book 641, Page 186 in the Laurel County Court 

Clerk’s office being more particularly described in the 

attached Exhibit 1; and

WHEREAS Purchaser desires to acquire the 

Property in fee; and

WHEREAS Seller desires to grant to Purchaser an 

irrevocable option to acquire the Property under the 

conditions set forth herein;

NOW, THEREFORE, in consideration of the 

foregoing premises and mutual agreements contained 
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herein and intending to be legally bound the parties agree 

as follows:

1. Seller does here by grant to Purchaser an 

exclusive and irrevocable right of first 

option (the “First Option”) and right of 

first refusal, (“the Refusal Option”) but 

not the obligation, to purchase the 

Property commencing on the date of 

execution.

2. In consideration for this option, Seller 

acknowledges the receipt and sufficiency 

of consideration, namely one hundred 

dollars ($100.00). Receiving full 

payment for this option, the parties deem 

it an irrevocable option.

3. For the purposes of this Agreement, a 

bona fide offer requires: (1) an 

enforceable sales contract, signed by 

both parties with the owner’s receipt of 

nonrefundable consideration from the

third party based on a percentage of the 

purchase price and (2) a letter of credit or 

other confirmation from a financial 

institution that the third party possesses 

the necessary funds to close the sale.

4. The Refusal Option will be triggered by 

any of the following events: (1) the 

Seller’s receipt of a bona fide offer as 

described herein, (2) a transfer of the 

Property to anyone other than the child of 

the Seller, and (3) any foreclosure on the 

Property (collectively, “triggering 

events”).

5. Upon receipt of a bona fide offer or 

occurrence of a triggering event, Seller 
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shall notify Purchaser by certified, return 

receipt mail including all documents 

related to the bona fide offer, the third 

party and the triggering event.

6. The Purchaser shall have thirty (30) days 

within which to notify the Seller by 

certified return receipt mail, he intends to 

exercise his Refusal Option.

7. This agreement constitutes and contains 

the entire agreement between the parties 

and supersedes any prior agreements of 

the parties. Any waiver or modification 

of this agreement must be in writing and 

signed by all parties. This agreement 

may be executed in any number of 

counterparts all of which shall be deemed 

an original and all of which constitute 

one document. The invalidity of any one 

provision shall not affect the validity or 

enforceability of any other or remaining 

provisions. This agreement shall inure to 

and be binding on all successors, assigns, 

and estates of the parties and shall run 

with the land. All notices are to be sent

via U.S. Mail, Facsimile or Courier to the 

addresses first set forth. This agreement 

shall be governed by the laws, rules and 

regulations of the Commonwealth of 

Kentucky.

8. The Purchaser shall pay all fees for the 

recording of this Agreement in the Laurel

County Clerk’s Office, London, KY. 

IN WITNESS WHEREOF, the parties hereto have 

executed this agreement effective as of the date first 

above written.
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By General Warranty Deed dated August 6, 2020, Jack transferred the 

5.55-acre tract of property to his siblings, Randall Vanover (Randall) and Martha 

C. Baker (Martha), which qualified as a triggering event under the Option 

Agreement. This deed was filed with the Laurel County Court Clerk’s Office.

Based upon the foregoing, Vanover commenced the underlying action 

on March 28, 2021, by filing a verified complaint with the Laurel Circuit Court 

against Jack, Randall, and Martha (collectively, the defendants or appellees). 

Because Randall and Martha were not Jack’s children, the Refusal Option was 

triggered. Jack did not provide Vanover with his right to exercise the First Option 

or the Refusal Option before conveying the property, and Vanover did not discover 

that the property had been conveyed until seven months later. In his complaint, 

Vanover alleged causes of action for breach of contract as to Jack, for tortious 

interference with a contract as to both Randall and Martha (as they had knowledge 

of the Option Agreement), and for temporary and permanent injunctive relief 

against all of the defendants. Based upon these allegations, Vanover sought 

compensatory damages, an order declaring his rights and interest in the land and 

his right to purchase the property for fair market value, a trial by jury, pre- and 

post-judgment interest, injunctive relief, and reasonable attorney fees.

The defendants filed an answer to the complaint, asserting that the 

complaint failed to state a claim or cause of action upon which relief could be 
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granted, disputing Vanover’s claim to recover attorney fees, and pleading several 

affirmative defenses. They specifically argued that the Option Agreement was 

unenforceable under Kentucky law because it failed to include an option price and 

a stated duration (or expiration date in response to requests for admission). 

In September 2021, the defendants filed a motion for summary 

judgment. They argued that the Option Agreement was void and unenforceable 

because (1) it did not include an option price at which Vanover could purchase the 

property, and (2) it purported to be for an irrevocable, perpetual duration in 

violation of KRS 381.225 and constituted an unreasonable restraint on alienation. 

Although there was a dispute as to whether the $100.00 purchase price recited in 

the Option Agreement had been paid (the defendants denied that it had been paid 

while Vanover contended it had been paid in cash), the defendants conceded for 

purposes of the motion that it had been paid. 

In his response, Vanover argued that the Refusal Option was valid and 

enforceable; the defendants focused solely on the First Option, which Vanover was 

not seeking to enforce. He agreed that the First Option had the potential to 

suspend the power of alienation beyond the permissible period of 21 years. 

However, the Refusal Option did not restrain an individual from conveying 

possession of the land in fee simple absolute. Vanover argued that a right of first 

refusal did not suspend the power of alienation and would not come into play until 
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the property owner obtained a sales contract (or, in this case, a triggering event 

occurred.) This also did not require a specific purchase price. Vanover should 

have had 30 days after the triggering event to notify Jack that he intended to 

exercise the Refusal Option. The defendants disputed this argument in their reply, 

stating that Vanover was conflating “alienation” with a “sale” and pointing out that 

Jack could not gift or transfer by will the property to anyone other than his 

children. The Refusal Option was perpetual, never-ending, and ran with the land. 

It therefore violated KRS 381.225, they argued, and was void. 

The defendants took Jack’s deposition in September 2021. He had 

purchased the 5.55-acre tract that was the subject of the Option Agreement from 

his older brother. He denied that he had received $100.00 from Vanover when the 

Option Agreement was signed. Jack stated that the Option Agreement coincided 

with Vanover’s purchase of Jack’s home. Jack did not know about the Option 

Agreement prior to that purchase. He said that at the closing on the sale of the 

home, Vanover “threw in at the end that he wanted to do, and it was basically well, 

if you don’t do this, I’m not going to buy your property. So that’s why I agreed to 

give him that purchase option, not realizing the consequences of it or whatever.” 

Jack said that he had not had any intention of selling the 5.55-acre tract and only 

signed the agreement so that Vanover would buy his house on the adjoining tract. 

He would not have signed the Option Agreement if he had understood it. He said 
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that Vanover wanted to build apartments on the 5.55-acre tract, which Jack did not 

want to happen. When asked if he intended to abide by the agreement once he 

signed it, Jack stated that he never thought Vanover would ever enforce it. And he 

thought he could sell it to his daughter as set forth in the agreement. 

Jack testified that he transferred the subject property to his brother and 

sister in August 2020 but did not notify Vanover prior to the conveyance. He 

mentioned it to Vanover about three months later but Vanover “blew [him] off.” 

Jack said that he transferred the property to his siblings because he was not well 

and wanted to go ahead and put the property in their names. “It was already in my 

will, anyway. It had been in my will for years that it would be transferred to them 

if something happened to me.” His siblings did not know about the agreement 

with Vanover when Jack conveyed the property to them. Jack agreed that the deed 

listed the fair market value of the property as $15,000.00, but he believed it was 

worth much more. Vanover came to Jack’s house in March 2021 to confront him 

about violating the Option Agreement. Jack recalled telling Vanover that he had 

cancer and was dying but did not recall telling him that he (Jack) had violated the 

agreement and that Vanover would have to do what he had to do. 

In November 2021, Vanover moved for leave to file a first amended 

complaint to add a claim for fraud based upon Jack’s admission during his 

deposition that Vanover would not have purchased the real property unless the 
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Option Agreement was executed, that Jack never intended to abide by its terms, 

that Jack desperately needed to sell his property, and that Vanover reasonably 

relied on the Refusal Option and purchased Jack’s home. Jack continued to 

disregard the agreement, and his fraudulent conduct injured Vanover. The 

defendants objected to the motion as futile based upon their arguments raised in the 

motion for summary judgment. 

Also in November 2021, Vanover moved the court to compel 

discovery, including Jack’s Last Will and Testament as well as his bank statements 

from 2016 through 2020. The defendants objected to this motion, again, based 

upon the arguments in their motion for summary judgment. Even if the motion for 

summary judgment were to be denied, such records were not reasonably calculated 

to lead to the discovery of relevant, admissible evidence. 

The court heard arguments from the parties on November 12, 2021. 

The defendants argued that the Refusal Option impaired Jack’s right to alienate the 

property by gift, intestacy, or will beyond the permissible period and was therefore 

void under the statute. It was not reformable, and there was no “wait and see” 

route available. Vanover also discussed his motion to amend the complaint. 

On December 8, 2021, the circuit court entered an order granting the 

defendants’ motion for summary judgment. The court analyzed both the First 

Option (which Vanover conceded was void) and the Refusal Option. As to the 
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Refusal Option, the court agreed with the defendants that Vanover’s argument 

ignored the fact that the power of sale is not the same as the power of alienation. 

Here, “the triggering events speak not only to the sale of the property at issue, but 

to any transfer of ownership of the property. While the Agreement does not 

suspend entirely the power of alienation, the triggering events contained therein 

quite clearly place limitations on the property owner’s ability to freely convey by 

gift or devise.” The court observed that “[i]f enforceable, the Option Agreement 

would prevent Jack and his heirs and assigns from ever gifting or devising the 

property (other than to Jack’s children, if any) – thereby restraining Jack’s ability 

to freely convey the property, whether or not for consideration.” The court 

concluded that because the Option Agreement purported to bind the heirs and 

assigns of Jack and Vanover perpetually, irrevocably running with the land, it 

violated KRS 381.225 (the codified rule against restraints upon alienation) because 

it was conceivable that the contingent interest may not vest within the permissible 

period. Therefore, the Option Agreement was void ab initio, and the defendants 

were entitled to a judgment as a matter of law. The court dismissed the complaint 

with prejudice but did not include language to make the order final and appealable 

pursuant to Kentucky Rules of Civil Procedure (CR) 54.02. 

Vanover moved the court to reconsider, alter, amend, or vacate the 

court’s summary judgment pursuant to CR 59.05. In the accompanying 
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memorandum, Vanover contended that the dismissal was procedurally improper 

because the court did not rule on the pending motion to amend the complaint (and, 

therefore, the summary judgment could not be a final order) and that KRS 381.225 

did not invalidate the agreement. And even if the Option Agreement was invalid, 

Vanover continued, the court failed to sever the offending provision or reform the 

agreement pursuant to KRS 381.226. He argued that the First Option and Refusal

Option arose from a nondonative transfer (the Option Agreement) and were 

therefore not subject to and could not be voided by limitations in KRS 

381.225(1)(a). In response, the defendants pointed out that Vanover improperly 

raised new legal arguments in his CR 59.05 motion. 

The court heard arguments from the parties in January, and on 

February 24, 2022, it entered an order ruling on Vanover’s pending motions. The 

court first denied the motion to alter, amend, or vacate, noting that Vanover had 

improperly used his CR 59.05 motion to raise new arguments that had not been 

raised prior to the entry of the summary judgment. It also reaffirmed the legal 

reasoning in its December 8 order. The court then denied the motion to amend the 

complaint as futile. The amended complaint did not state a cause of action for 
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fraud, and a misrepresentation claim arising from a real estate transaction was not 

viable based upon Kentucky’s Statute of Frauds. This appeal now follows.1

On appeal, Vanover argues that the circuit court erred as a matter of 

law in refusing to enforce the Refusal Option for several reasons, including 

misapplication of the law, the refusal to consider his arguments set forth in the 

motion to reconsider, and the denial of his motion to amend the complaint. As 

these represent questions of law, we shall review Vanover’s arguments de novo. 

See Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983 

S.W.2d 488, 490 (Ky. 1998) (“The construction and application of statutes is a 

matter of law and may be reviewed de novo.”); Fox v. Grayson, 317 S.W.3d 1, 7 

(Ky. 2010) (“Since a motion to dismiss for failure to state a claim upon which 

relief may be granted is a pure question of law, a reviewing court owes no 

deference to a trial court’s determination; instead, an appellate court reviews the 

issue de novo.”). 

For his first argument, Vanover asserts that KRS 381.225 does not 

apply to the Refusal Option or render it void as that statute expressly exempts 

nondonative transactions like the one at issue in this appeal. The circuit court 

found that the Refusal Option was void under KRS 318.225(1)(a), which provides 

1

Jack passed away on July 13, 2022, and Martha was named as the executrix of his estate and 

substituted in his place after the notice of appeal was filed.
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that “[a] future interest or trust is void if it suspends the power of alienation for 

longer than the permissible period.” That subsection also defines “the power of 

alienation” as “the power to convey to another an absolute fee in possession of 

land, or full ownership of personalty.” Finally, this subsection provides that “[t]he 

permissible period is within twenty-one (21) years after the death of an individual 

or individuals then alive.” The defendants (now the appellees) argue that the 

circuit court properly applied the law and dismissed Vanover’s complaint. 

Vanover relies upon KRS 381.225(4)(c) to argue that his property 

rights in the present case are expressly exempted from the 21-year time limitation 

set forth in KRS 381.225(1)(a) because these rights arose from a nondonative 

transfer. 

The appellees disputed Vanover’s ability to raise this argument before 

the circuit court and continue to dispute it in this appeal. They rely upon the 

Supreme Court of Kentucky’s statement in Gullion v. Gullion, 163 S.W.3d 888, 

893 (Ky. 2005), that “[a] party cannot invoke CR 59.05 to raise arguments and to 

introduce evidence that should have been presented during the proceedings before 

the entry of the judgment.” They assert that Vanover is not entitled to a “second 

bite at the apple” after hiring new counsel. 

On the other hand, Vanover argues that the circuit court’s summary 

judgment was not final and appealable because the court had not yet ruled on a 
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pending motion to amend the complaint; the court did not rule on that motion until 

it did so in the order denying the CR 59.05 motion. He asserts that “[u]ntil a final 

judgment is entered, all rulings by a court are interlocutory, and subject to 

revision.” JPMorgan Chase Bank, N.A. v. Bluegrass Powerboats, 424 S.W.3d 

902, 909 (Ky. 2014). He also points out that he did not raise any new evidentiary 

issues and had in fact argued in his response to the summary judgment motion that 

the Refusal Option did not violate KRS 381.225. Therefore, Vanover argues that 

he properly raised this issue in his original response and that the circuit court 

should have considered his argument. 

We agree with Vanover that, because the summary judgment was 

interlocutory due to the pending motion to amend the complaint and because he

addressed the application of KRS 381.225 and the lack of restraint on alienation in 

his response to the motion for summary judgment, he was able to raise the issue 

related to the application of KRS 381.225(4)(c). The court was not precluded from 

considering this argument in the CR 59.05 motion. Therefore, we shall consider 

whether the Refusal Option was excepted from the application of KRS 

381.225(1)(a).

In 2010, the General Assembly abrogated the common law Rule 

Against Perpetuities: “An interest created in real or personal property shall not be 

void by reason of any rule against perpetuities, whether the common law rule or 
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otherwise. The common law rule against perpetuities shall not be in force in this 

Commonwealth.” KRS 381.224. At the same time, the General Assembly enacted 

two additional statutes addressing alienation, KRS 381.225 and KRS 381.226, 

which were both slightly amended in 2020. KRS 381.225 addresses the 

permissible period of the power of alienation under a trust or future interest as set 

forth above, and it expressly carves out exceptions in subsection (4), including 

nondonative transfers. And KRS 381.226 addresses the applicability of KRS 

381.224 and 381.225 to property interests and powers of appointment, and it 

specifically permits reformation. 

Vanover’s argument rests on the application of KRS 381.225(4)(c), 

which provides, in relevant part:

(4) This section does not apply to limit any of the 

following:

. . . .

(c) A future interest or a power of 

appointment arising out of a nondonative 

transfer[.]

Because his rights arose from a nondonative transfer (the Option Agreement

expressly states that Vanover paid Jack $100.00 for the property rights) rather than 

from a donation or gift, Vanover argues his property rights were not subject to the 

limitations set forth in KRS 381.225(1)(a). We agree.
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Vanover cites to cases from other jurisdictions to support his 

interpretation of the statute as this is a matter of first impression in Kentucky. We 

find the legal reasoning in these cases to be persuasive. In Shaver v. Clanton, 26 

Cal. App. 4th 568, 31 Cal. Rptr. 2d 595 (1994), a California Court of Appeal 

considered whether a lease amendment that provided for perpetual options to 

renew was void because it violated rule against perpetuities. “Until 1991, 

California law applied the rule to commercial transactions and, accordingly, to 

options to renew. That changed with the adoption of the Uniform Statutory Rule 

Against Perpetuities. Now, commercial, nondonative transactions are exempt from 

the rule.” Id. at 571. The Court held:

Until the adoption of the Uniform Act, California 

common law applied the rule against perpetuities to 

commercial transactions. Accordingly, the rule was 

applied to such interests as options to renew, rights of 

first refusal, and commercial leases. The Uniform Act 

changed California law by explicitly excluding such 

commercial transactions from coverage under the rule. 

The rule is now irrelevant to such transactions: “It makes 

no sense to apply a rule based on family-oriented 

donative transfers to interests created by contract whose 

nature is determined by negotiations between the 

parties.” (Rep., supra, at p. 2516.) “The rationale for 

this exclusion is that the rule against perpetuities is a 

wholly inappropriate instrument of social policy to use as 

a control over such arrangements. The period of the rule

– a life in being plus 21 years – is not suitable for 

nondonative transfers . . . .” (1991 Addition to Law 

Revision Com. com., 54A West’s Ann. Prob. Code, § 

21225 (1994 pocket supp.) p. 60 [hereafter Commission 

1991 Addition].)
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The Law Revision Commission Comment 

explains, “[S]ubdivision (a) [of section 21225,] is . . . 

inconsistent with decisions holding the common law rule 

to be applicable to the following types of property 

interests or arrangements when created in a nondonative, 

commercial-type transaction, as they almost always are: 

options [citation]; preemptive rights in the nature of a

right of first refusal [citations]; leases to commence in the 

future, at a time certain or on the happening of a future 

event . . . .” (Com. 1991 Addition, supra, at p. 60.)

Shaver, 26 Cal. App. 4th at 574 (footnotes omitted). See also Bauermeister v. 

Waste Management Co. of Nebraska, Inc., 280 Neb. 1, 9, 783 N.W.2d 594, 600 

(2010) (“Our decision is consistent with the courts and commentators, noted above, 

who have observed that the purposes supported by the rule against perpetuities do 

not logically apply to commercial transactions such as options.”). 

We agree with Vanover that, in enacting KRS 381.225, the General 

Assembly chose to include an express, statutory exception for nondonative 

transfers as set forth in subsection (4)(c). While the parties were family members 

rather than commercial entities, the Option Agreement specifically set forth that 

Vanover paid Jack $100.00 for the property rights under the option, making this a 

nondonative transfer under the statute and, thus, exempt from the limitations of 

KRS 381.225(1)(a). And for purposes of this legal issue, the appellees conceded 

that the $100.00 had been paid. We reject the appellees’ suggestion that we hold 

that the $100.00 payment did not constitute a nondonative transfer because “a 

meager $100 was hardly a valuable consideration.” That issue is not before the 
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Court, and neither is the question as to whether the transfer took place at all, which 

would be considered an issue of fact. Accordingly, the circuit court erred as a 

matter of law in holding that the Refusal Option contained in the Option 

Agreement was void as violative of KRS 381.225 because it failed to consider or 

apply the exception in KRS 381.225(4)(c).2 

Based upon our holding above, we need not address Vanover’s 

remaining arguments as to whether the circuit court properly held that the Refusal 

Option was void.

Next, we shall consider Vanover’s argument that the circuit court 

erred when it denied his motion to amend his complaint to state a cause of action 

for fraud against Jack. In the order denying the CR 59.05 motion, the court found 

that the motion to amend was futile, that the tendered amended complaint failed to 

state a cause of action for fraud, and that “a misrepresentation claim arising from a 

real estate transaction is not viable based upon the Kentucky Statute of Frauds.” 

“In a Kentucky action for fraud, the party claiming harm must 

establish six elements of fraud by clear and convincing evidence as follows: a) 

material representation b) which is false c) known to be false or made recklessly d) 

made with inducement to be acted upon e) acted in reliance thereon and f) causing 

2 The validity of the First Option in the Option Agreement is not before the Court as Vanover 

conceded below that he brought this action to enforce only the Refusal Option. 
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injury.” United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999) 

(citing Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357, 359 (Ky. App. 1978)). 

Here, Vanover was seeking to state a cause of action for fraud in the inducement 

against Jack based upon his deposition testimony that he never intended to comply 

with the terms of the Option Agreement. “One may commit ‘fraud in the 

inducement’ by making representations as to his future intentions when in fact he 

knew at the time the representations were made he had no intention of carrying 

them out[.]” Major v. Christian Cnty. Livestock Market, Inc., 300 S.W.2d 246, 

249 (Ky. 1957). We agree that Vanover set forth in his brief allegations sufficient 

to plead the elements of a cause of action for fraud, although we offer no opinion 

as to whether that cause of action is viable. 

We also hold that the circuit court erred in stating that this cause of 

action was barred by the Statute of Frauds. See Rickert, 996 S.W.2d at 471 

(“Kentucky is with the majority of states in holding that the statute of frauds is not 

a bar to a fraud or promissory estoppel claim based on an oral promise of indefinite 

employment.”); Hanson v. American National Bank & Tr. Co., 865 S.W.2d 302, 

308 (Ky. 1993), overruled on other grounds by Sand Hill Energy, Inc. v. Ford 

Motor Co., 83 S.W.3d 483 (Ky. 2002) (“[O]ur statutes do not abrogate the 

common law remedy for fraud merely because the fraudulent misrepresentation is 
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not in writing.”). Accordingly, we hold that the circuit court erred as a matter of 

law in denying Vanover’s motion to file a first amended complaint.

For the foregoing reasons, the Laurel Circuit Court’s summary 

judgment and the order denying the CR 59.05 motion and the motion to file a first 

amended complaint are reversed, and this matter is remanded for further 

proceedings in accordance with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Medrith Lee Norman

Lexington, Kentucky

BRIEF FOR APPELLEES:

A. Aaron Hostettler

London, Kentucky